Criminal Procedure Law -- Lecture 2 : Introduction

Applicable Law

Fourth Schedule First Schedule

[ Procedure on Body Search] [ Tabular Statement of Offence
Under Penal Code ]

9 Parts
44 Chapters
444 Sections

Third Schedule Second Schedule

[ Modification of Chap [ Forms ]
XXXIII for S&S ]

Applicable Law – Specific Statutes

The following statutes also provide for and regulate criminal procedure –
 Arms Act 1960 (Revised 1978)
 Child Act 2001
 Dangerous Drugs Act 1952 (Revised 1980)
 Firearms (Increased Penalties) Act 1971 (Revised 1980)
 Kidnapping Act 1961 (Revised 1989)
The following statutes are no longer in force [wef 21/6/2012 pursuant to annulment under Art
150(3)FC of the 3 Proclamations of Emergency passed by Dewan Rakyat on 24/11/2011 and Dewan
Negara on 20/12/2011]-
 Internal Security Act 1960 (Revised 1972)
 Essential (Security cases) Regulations 1975 Arms Act 1960 (Revised 1978)

The process of criminal justice is governed by the following legislation –

  Criminal Procedure Code (Revised 1999) (Act 593)
 Courts of Judicature Act 1964 (Act 91)
 Subordinate Courts Act 1948 (Act 92)

The principle legislation which provides the basis/framework for the criminal process is the
Criminal Procedure Code (CPC)
 Section 3 : Trial of Offences under Penal Code & other laws.
 Karpal Singh & Anor v PP [1991] 2 MLJ 544
Q : Can go beyond CPC and apply English Law?
There is no CPC in England. CPC – exhaustive but not comprehensive
Section 5 of the code is inactive.
The CPC was intended to be an exhaustive pronouncement of the criminal procedure.
But it cannot be said to be comprehensive.

 Thus, where a lacuna in the law in Malaysia exists, English criminal procedure law shall be
applied so far as the same shall not conflict or be in consistent with the CPC and can be auxillary
thereto.
 s 5 CPC
 Karpal Singh & Anor v PP [1991] 2 MLJ 544
 Re Kah Wai Video (Ipoh) Sdn Bhd [1987] 2 MLJ 459

Warrant
Search - list of things to be search and seize

Seizure - things not in the list – can / cannot?

See : Re Kah Wai case (Held : valid and legal)

Illegal - does not affect admissibility

 The CPC was first introduced in 1927 in the former Federated Malay States to govern
criminal procedure [FMS Cap 6].
 But from 10 January 1976, it applied throughout Malaysia.
 It was revised in 1999 as Act 593 which superceded the FMS Cap 6.
 The CPC has been the subject of amendment throughout the years, more so in the last decade.
 ‘Amendments to the Criminal Procedure Code: Radical or Piecemeal Legislation?’ [2007] 7 MLJA
53

What is a crime?
 Having identified that the criminal process is part of the State response to crime, what then
constitutes a crime?
 Crime is –
 “a social harm that the law makes punishable; the breach of a legal duty treated as the subject
matter of a criminal proceeding.”
 Black’s Law Dictionary
“an unlawful act or default which is an offence against the public and renders the person guilty of the
act or default liable to legal punishment.”
 Halsbury’s Laws of England

Offence
 Curiously, the word “crime” is not used and defined in the Malaysian statutes.
 The word used and defined is “offence”.
 s 40 Penal Code (Revised 1957) (Act 574) [PC]
 s 2(1) CPC
 An offence is further distinguished by the CPC as:
 “seizable offence” and “non-seizable offence”;
 “bailable” and “non-bailable”
 The CPC also differentiates between “summons case” and “warrant case”.

Seizable and non-seizable

 Bailable, non-bailable, unbailable

Bailable Offence Non-bailable Offence Unbailable Offence

Accused is entitled to be Accused may not be released Accused is not allowed bail.
released on bail. on bail.

The right of the accused to
be released on bail.
The accused has no right to be The court has no discretion
released on bail. Nonetheless, to grant bail.
the person accused of a non-
bailable offence may be
released on bail, subject to
the court’s discretion.

Less serious in nature More serious in nature

Generally, offences Generally, offences punishable Specified provisions for

punishable with imprisonment with imprisonment for three example; FIPA 1971, DDA
with less than three years years or more are non-bailable 1952 or reg 9 of the ESCAR
are bailable in nature. in nature.

Summons case and warrant case

 Summons case : a case relating to an offence and not being a warrant case.
 Warrant case : a case relating to an offence punishable with death / imprisonment for a term
exceeding 6 months.
 Ss 34 – 37 provides for the requirements for the form and service of summons.
 Ss 38 – 43 make provisions for warrant of arrest.
 Ss 47 – 50 make provisions for issuance of warrant of arrest in lieu of or in addition to
summons.

Summons Case Warrant Case

A summons is addressed to the person Warrant is addressed to the police officer.

summoned. A summons case is less serious in A warrant case is more serious in nature.
nature.

Summons cases relate to offences punishable Warrant cases relate to offences punishable
with less than 6 months imprisonment. with imprisonment exceeding 6 months & the
death sentence.

A formal charge need not be framed. The framing of charge is important.

The complainant can withdraw the case with Such a withdrawal is not allowed except in
the permission of the court. the case of compoundable offences.
 Do we have new Criminal Procedure Code?
By Abu Daud Abdul Rahman, Member, Criminal Law Committee

Complaint and First Information Report (FIR)

 If it is the State’s duty to response to crime, it is the citizen/public’s duty to “inform” the
State of the commission or suspicion of commission of a crime.
 This may be done by way of –
 Report to the police
 Complaint to the Magistrate
 Both
 If the report is made to a police officer, it is often referred to as a “First Information
Report” (FIR)
 The person who makes / lodges the report is called the “informant”
 FIR is not defined in the CPC
 Generally it is the first report of an alleged offence, orally or in writing.
 It serves as a complaint to the police to start investigation.

 If a matter is alleged before a Magistrate, it is called a “complaint”.

 The person who lodges the complaint is called “complainant”
 S. 2(1) CPC
 PP v Leonard (1960) 1 MLJ 13

The criminal Courts

Investigation, Inquiry and Trial

When the criminal process is set into motion, three processes may be identified –
 Investigation
 Inquiry
 Trial
Introduction
 The courts for the administration of criminal justice in Malaysia shall be those constituted
pursuant to the Federal Constitution, or the Courts of Judicature Act 1964 (CJA), or by the
Subordinate Courts Act 1948 (SCA), or by any other law for the time being in force.
 s 6 CPC

 Courts constituted under Constitution, or the CJA

 Federal Court
 Court of Appeal
 High Courts  in Malaya
 in Sabah and Sarawak

 Courts constituted by the SCA

 Sessions Courts
 Magistrates’ Courts
 Penghulu’s Courts  Subordinate Courts (Amendment) Act 2010

 Courts constituted by any other law

 Courts for Children  s 11 Child Act 2001
 Native Courts  Native Court Enactment 1992
 Syariah Courts

Hierarchy of courts
-------------------------------------------------------
Superior Courts

Federal Court
Special
Court of Appeal Courts

High Court in High Court in

Malaya Sabah & Sarawak
--------------------
Subordinate Sessions Court
Courts

Magistrate Court Court for Children

Open & Public Courts
The courts are open and public courts to which the public generally may have access.
 S.7 CPC
 Lee Boon Tuan v PP [1960] MLJ 179

However, courts are not open to public in certain circumstances.

Eg :  s.101 SCA
 s. 15 CJA
 s. 12 Child Act 2001

Jurisdiction
 A court of law is an institution empowered with the authority to determine finally any dispute
properly brought before it in a manner that will bind the parties to the dispute.
 The term used to describe that authority is “jurisdiction”.
 “Jurisdiction” literally means the “pronouncing of the law”

 The term is used in many senses in the English language.

 In a political sense, it means area over which a country / government wields political power.
 Geographically, it describes countries, or distinctive legal systems.
 In public international law, it describes the sphere of political and legal influence of nations.

 When used in conjunction with courts of law, “jurisdiction” is defined as –

 “legal authority or power”;
 the “range of judicial or administrative power; the territory over which such power extends”

 However, this is far from exhaustive. Understandably so, because the term has many
different shades of meaning.

 Most generally, the term is used to describe the authority and power of the courts to
adjudicate disputes and to ward and enforce its pronouncement.

Jurisdiction & Power

 Since jurisdiction is often used to describe the powers of the court, the two words are often
also used interchangeably.

 Thus, the phrase “inherent jurisdiction” has been used to describe the inherent powers of the
court to protect its own processes, including –
 the punishment of people for contempt of court; and
 to strike out and dismiss proceedings as an abuse of court process.
 However, the distinction between the two words is a critical one.
 And the courts have recognised the distinction between the two.
Lee Lee Cheng v Seow Peng Kwang [1960] MLJ 1
Abdul Ghaffar bin Md Amin v Ibrahim bin Yusoff & Anor [2008] 3 MLJ 771
Munawar Ahmad Anees v PP [2009] 2 MLJ 1
Dato' Seri Anwar bin Ibrahim v PP [2011] 1 MLJ 158

 There are several types of, or sub-concepts in, jurisdiction.

 In respect of criminal jurisdiction, the more prominent types of jurisdiction are – a
 Local jurisdiction : Which court has jurisdiction to try an offence committed in a particular area
 Trial jurisdiction : What offence can be tried in a particular court
 Sentencing jurisdiction : What sentence can be imposed by a particular court

Alor The case falls in which place, then the

Gajah Jasin place have the jurisdiction :
1. local jurisdiction
Melaka Tengah 2. Trial jurisdiction
3. Sentencing jurisdiction

Magistrates’ Court
 S 76 SCA

 S 88 SCA
 S 117(2) CPC

 S 89 SCA

 s 85 SCA
 s 83 SCA
 s 9 CPC
 s 30(1) CJA

 S 87(1) SCA
 First exception  Second exception
 S 118 Customs Act 1967  S 87(2) SCA
 S 41 Dangerous Drugs Act 1952 PP v Tengku Hitam [1962] MLJ 414
 S 6(3) Betting Act 1953 Abdul Wahab v PP [1970] 2 MLJ 203
Cheong Ah Cheow v PP [1985] 2 MLJ 257 PP v Govindnan a/l Chinden Nair [1998] 2 MLJ 181
PP v Yap Sin Peng [1986] 2 MLJ 66 Nadarajah v PP [2000] 4 MLJ 373
Sessions Court
 S 59 SCA
Taman Rimba (Mentakab) Sdn Bhd v Sin Yew Poh Tractor Works [2002] 5 MLJ 321
 S 63 SCA
 S 64 SCA
Tuan Mat b Tuan Lonik
 S 288(5) CPC
Nadarajah v PP [2000] 4 MLJ 373

High Court
 Art 121 FC
 S 3 CJA
 S 22 CJA
Datuk Haji Wasli bin Mohd Said v PP [2006] 5 MLJ 172
 Local jurisdiction
Tengku Abdul Muiz Shah & Ors v PP [1983] 1 MLJ 422
Lt Kdr Balakrishnan v Menteri Pertahanan Malaysia [1994] 2 AMR 1045
Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd [1988] 2 MLJ 268